18 May 2005

CYA Paperwork

It's the paperwork you develop so that your client cannot later say that you didn't tell him stuff you told him:

Good Day,

Per your instruction I have begun the process of your appeal. As you know, the appeals process is not fast. Things which should happen and their schedule:

1) The appeal must be noted within 30 days of the entry of the sentencing order in the circuit court.

2) The transcripts of the trial must arrive within 60 days of the entry of the final sentencing order in the circuit court.

3) The circuit court must send a copy of the trial record to the court of appeals within 3 months of the final sentencing order in the circuit court.

4) The petition of appeal shall be filed within 40 days of the court of appeals getting a copy of the file from the circuit court. i) This is the written argument as to why the court should agree to listen to your appeal. The court of appeals does not have to grant you an appeal.

5) The court of appeals will take as long as it decides it needs to make the decision as to whether to hear your case. This can take months.

6) If the court of appeal decides to hear your case a date will be set and the attorney will go make the argument. Generally, the attorney will go alone. If you are not in jail you are welcome to come observe but you will have to sit in the gallery.

7) If the court of appeals refuses to hear your argument or rejects it after an argument at the court it is possible to appeal the case to the supreme court of Virginia. i) You will be notified when the court of appeals has reached its decision. ii) If you want to appeal to the Supreme Court of Virginia notify my office as soon as possible after receiving the decision of the court of appeals.

8) The notice of appeal to the Virginia supreme court shall be filed within 30 days of the final judgement of the court of appeals.

9) The petition for appeal to the supreme court of Virginia must be filed within 30 days of the final judgement of the court of appeals. i) This is the written argument as to why the court should agree to listen to your appeal. The Virginia supreme court does not have to grant you an appeal.

10) If the supreme court decides to hear your case a date will be set and the attorney will go make the argument. Generally, the attorney will go alone. If you are not in jail you are welcome to come observe but you will have to sit in the gallery.

11) If the supreme court refuses to hear your argument or rejects it after an argument at the court there is no further right of appeal in Virginia.

12) Virginia will not pay for an appeal to the Supreme Court of the United States. The chance that the Supreme Court of the United States would listen to a case is very, very small and it would be very expensive to hire someone to do it. However, if you have the money (or can convince someone like the ACLU, NAACP, or NRA to pay for it) you should hire an attorney as quickly as possible to start a petition as soon as possible.

13) You have the ability to file a writ of habeas corpus for a year after the last decision of the Virginia court of appeals or supreme court. I cannot represent you in this.

PLEASE UNDERSTAND

1) An appeal is basically a legal argument which says that a judge has done something that is legally or constitutionally wrong in the courtroom.

2) This is not a new trial i) No new evidence will be allowed. ii) There will be no jury. iii) The attorney will argue in front of judges that the trial judge did something legally incorrect.

3) Arguing that the judge got the facts wrong is very hard. The judges on the appeals courts usually defer to the facts which the judge found.

4) Arguing that a sentence was wrong is even harder. The judge can sentence a defendant to as much jail/prison time as he feels is correct as long as it is less than the maximum sentence. He is not required to follow the sentencing guidelines.

5) I cannot argue that I messed up as an attorney. I have to argue the errors made by the judge; it would be a conflict of interest for me to argue that I made mistakes. Attorney mistakes are something you must raise in a habeas proceeding. At that point you can tell the court of any errors you believe I made and how they messed up your case.

I will proceed with your appeal and forward you petitions and orders as they arrive at my office.

Respectfully,

Ken Lammers Jr., Esq.

I've developed this one recently in reaction to certain issues which have popped up. If anyone has any suggestions I'm open to them.

3 comments:

Anonymous
said...

I'm in a very different racket (bespoke software development), but you wouldn't believe the boilerplate we've come up with over the years and shove at clients. It only takes one dumb civil suit (we won), and I spend ~80 hours writing it, and a several K on legal review/mangling of what I wrote. The last time my lawyer and I did this, he told me I should have gone to law school.

I only do appellate criminal defense. You go more into detail about what won't happen that my office does in our boilerplate. You don't, however, cover one thing that we do (which is probably because I'm at a state agency and you're in private practice): phone calls. We're not allowed to accept collect calls (i.e. from prisoners) that haven't been arranged in advance and we rarely arrange prison visits. So, we go into a little bit about when we'll call the appellant and how we can't discuss his case with his family if they call us.

I'd add for each of those items one of these sentences:* If you wish this done, you must do it.* If you wish me to do this, you must request that I do so by {X}.* I will do this unless I receive by {X} a request from you that I not do so.* {X} is expected to do this. You do not need to take action unless this does not happen.* This is for your information and you are not expected to take action on it.

That way your CYA documentation has no possible confusion over who's expected to be doing some step.

Video Channels

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.